Based on this decision from earlier this week, it’s pretty clear that U.S. Bankruptcy Judge Frank Monroe of Austin — a former Houstonian — is not pleased with Congress and President Bush over the Bankruptcy Reform Act of 2005 passed by Congress last year (earlier post here, here, here, and here). The following excerpt will give you a flavor for Judge Monroe’s entire opinion:
The Congress of the United States of America passed and the President of the United States of America signed into law the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the “Act”). It became fully effective on October 17, 2005. Those responsible for the passing of the Act did all in their power to avoid the proffered input from sitting United States Bankruptcy Judges, various professors of bankruptcy law at distinguished universities, and many professional associations filled with the best of the bankruptcy lawyers in the country as to the perceived flaws in the Act. This is because the parties pushing the passage of the Act had their own agenda. It was apparently an agenda to make more money off the backs of the consumers in this country. It is not surprising, therefore, that the Act has been highly criticized acrosse the country. In this writer’s opinion, to call the Act a “consumer protection” Act is the grossest of misnomers.
Moreover, he’s just getting warmed up in the foregoing passage. Read the whole thing. Steve Jakubowski comments and provides more context here.
That has to be the greatest bankruptcy opinion I have ever read in my life.
Sorry I missed that earlier, but thanks for reposting.
S.
Judge Monroe Tells It Like It Is: BAPCPA Is a Fiasco Because Congress Sold Out Individual Consumers to Special Interest Groups
Remember back in October 2005, in the week before BAPCPA became effective, when about 500,000 consumers decided they’d be better off filing bankruptcy than risking the possibility they’d have to enter BAPCPA’s inferno at some later time? Back thenk I…
If the esteemed jurist has a problem with applying the law as it is written, he has the option (if not the obligation) to step down from the bench. He is free seek office in the legislative branch of our government if he feels the law as written needs to be changed. If he wanted to opine on the work of Congress, he should have prefaced his remarks with an explanation as to how his Constitutional authority to ridicule Congress is derived. In other words, enough with grandstanding in judicial opinions. If a jurist wishes to be instructive, informative, educational or even entertaining in his opinions, he certainly has the right to do so. However, it is wholly out of line for an individual jurist to use his position on the bench simply to berate Congress because he doesn’t personally approve of an individual Act of Congress.
Charles, despite his misgivings about the legislation, Judge Monroe upheld the legislation in the decision. Why do you think it’s out of line for a member of a co-equal branch of government to criticize what he believes is an ill-advised act of another branch?
I would have to agree that a Federal Judge has as much right to complain about Congress, as Congress has to complain about Judges.
We all talk about how each Branch of Government has the right to assert their powers, as well as be governed by the checks and balances exerted by the other branches.
I would also suggest that we as a society have put a lot of “stock” in the opinions of “experts”. If this Judge is not an expert on bankruptcy, I don’t know what one would look like.
The federal judiciary, as a whole, is indeed a co-equal branch of government. However, those on the federal bench, as they have lifetime appointments, are not directly accountable to the people. What Judge Monroe chose to do in this instance is to use his position on the federal bench to directly opine on policy and to give his personal views on a given Act of Congress. Had he chose to offer his own personal opinion as a private citizen and in a private forum, I would have no problem. In this instance, Judge Monroe, in his official capacity as a member of the federal judiciary, chose to emphasize his personal opinion as opposed to simply interpret the law as it was written (as he swore an oath to do). I question the propriety of any governmental official using their official capacity to promote their personal views. In this instance, Judge Monroe’s personal opinion has no relevence to the matter presented to the Court. I further question the propriety of a government official not accountable to the electorate and acting in his official capacity actively seeking to bring ridicule upon the those who are accountable to the electorate. Unquestionably, what the judge was attempting to do is to influence the debate on how bankruptcy law should be crafted. If he wishes to do so, he rightfully should do it as a private citizen or as a government official accountable to the electorate. Judge Monroe shoule be reprimanded and should apologize. His comments, offered from the bench, were wholly inappropriate.
How is what Judge Monroe did any different from a member of Congress or the Executive Branch, in the course of conducting their duties, criticizing a judge for what the member believes is an incorrect interpretation of a law?
I’m not comfortable that your restriction of free speech is justified or advisable for members of the Judicial Branch.
My point is that the judicial branch is not accountable to the electorate and therefore should not be attempting to influence legislative activities of Congress. Should the judicial branch forego their life time appointments and become accountable to the electorate for the influence they are exerting on policy makers, then i would say that the judicial branch would be within their rights to influence the crafting of legislation. Much of what our revolutionary war was fought for was the fact that we did not want individuals with lifetime positions who were not accountable to the people creating the laws under which we live. Judge Monroe would do well to remember that. His attempts to influence Congress on any point of legislation is improper.
Charles, your presumption that a lifetime appointment should preclude someone from attempting to influence policy matters — particularly those within one’s area of expertise — is a non-sequitur.
My contention is that only those who are directly accountable to the elecorate should be crafting legialation. Call it old fashioned but I still feel that supreme authority comes only from a mandate by the people. We decided long ago that direct accountability to the electorate was to be a hallmark of our legislative structure. The esteemed Judge Monroe evidently feels accountability of the legislators to the electorate to be beneath him. Or so it seems.
Charles,
Judge Monroe doesn’t have a lifetime tenure. He’ll have to apply for reappointment with the 5th Circuit, many of whom are staunch supporters of the current administration.
You need to get your facts straight before using this instance as a platform for general greivances about “activist judges” that we’re all quite familiar with already.
And there’s nothing in the Constitution that says a judge can’t issue an opinion that is critical of a piece of legislation.
His comments are completely irrelevant and show a lack of understanding of his role in our system. As a judge, his SOLE duty is to interpret the laws and apply those laws to the facts of the cases that come before him. What is truly unfortunate is that he has given the appearance of bias (his own agenda has been revealed). I would not want to be a creditor (or, as an attorney, represent a creditor)in Monroe’s court. The cards are stacked against you from the beginning. What lack of judgment.